No Defense for DOMA

Aug 8, 2012 by

Even though the federal Defense of Marriage Act (DOMA) that defines marriage as the legal union between one man and one woman was signed into law by President Bill Clinton in 1996 after it easily passed in both the House and Senate, the law continues to gather opposition. Critics continue to charge that DOMA is discriminatory, unconstitutional and indefensible because it bans recognition of gay marriage at the federal level.

Current polls show increasing support for gay marriage around the country with five states and the District of Columbia legalizing it, and New York and Maryland recognize same-sex marriages performed in other states as legal. The law has also been nullified in several federal courts and there are lawsuits pending in most states.

Last week, House Speaker John Boehner and House Republicans hired a private law firm after the Obama administration said it would no longer provide attorneys to defend the Defense of Marriage Act in court against state and federal level challenges. Boehner hired King & Spalding at taxpayer expense to defend the Defense of Marriage Act in the fight to keep gay couples from getting married. Events then took a sharp turn when King & Spalding said it was dropping the case because of inadequate vetting.

King & Spalding’s decision to drop the case came just as the gay political group, the Human Rights Campaign had announced they would organize protests outside King & Spalding’s Atlanta office and wage a national campaign against the firm with advertising and letters to clients. Petitions asking the firm to reconsider were already running online when King & Spalding announced its withdrawal from the case, but the squabbles didn’t stop there.

King & Spalding partner, Paul Clement, immediately resigned from the firm in protest that the law group had simply chickened out of an unpopular case instead of defending an unpopular client. Clement was widely quoted saying “Much has been said about being on the wrong side of history, but being on the right or wrong side of history on the merits is a question for the clients. I resign out of the firmly-held belief that a representation should not be abandoned because the client’s legal position is extremely unpopular in certain quarters. Defending unpopular clients is what lawyers do.” Clement then said he would continue to represent the House Republicans from another Washington firm called Bancroft.

Critics of DOMA were obviously pleased with the turn of events and held the position that even though House Republicans will likely pursue continued defense of the law, King & Spalding made the right choice to put principle before politics and that any law firm valuing gender equality should be committed to the same values. Not long after the cheering began, opinion pieces began popping up in the editorial pages around the country saying that gay rights advocates had gone too far in attacking the law firm.

Apparently some felt quite strongly that while all clients are entitled to the representation, it is the representation of the most unpopular clients that goes the farthest toward protecting the freedoms of every citizen. Because the gay advocate groups applied pressure directly to the firm that chose to represent the case as well pressuring as the firm’s clients, it violated the code of ethics for lawyers that mandates that all attorneys must be free to advocate for unpopular causes and clients. Surprisingly, it was the Obama Administration’s Attorney General Eric Holder who took the unusual step of defending Paul Clement’s continued defense of DOMA at a new law firm when he said Clement was “doing that which lawyers do when we’re at our best.”



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